Opinion
No. CV-03-1827-PHX-DGC.
September 30, 2005
ORDER
Pending before the Court are motions for partial summary judgment, motions to supplement, and motions to amend filed by Defendant and motions to strike filed by both parties. Docs. ##48, 68, 70, 90, 92, 101, 104, 115, 131, 133, 145, 148, 152.
The parties have requested oral argument on the motions for partial summary judgment. The Court will deny the requests because the parties' memoranda thoroughly discuss the law and evidence and the Court concludes that additional argument will not aid its decisional process. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999).
Background
Plaintiff Equal Employment Opportunity Commission commenced this action on September 18, 2003 by filing a complaint against Defendant that purports to state violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Doc. #1. Plaintiff alleges in the complaint that since at least May 1, 2000, Defendant has terminated employees, including Jacque Judge, Carol Nikrant, and Gordon Cameron, because of their ages. Doc. #1 ¶ 7. Pursuant to the Court's case management order, Plaintiff filed a notice on April 6, 2004 identifying Gregory Leach and Charlyne Sheehan as additional class members on whose behalf Plaintiff will seek relief in this action. Docs. ##24, 33.Discussion
I. Summary Judgment Standard.
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines which facts are material and "[o]nly disputes over facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, to preclude summary judgment the dispute must be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
The Ninth Circuit has "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). Very little evidence is required to survive summary judgment in such cases "`because the ultimate question is one that can only be resolved through a `searching inquiry' — one that is most appropriately conducted by the factfinder, upon a full record.'" Id. (citations omitted); see Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Schnidrig).
II. Defendant's Motion for Partial Summary Judgment Re: Gregory Leach.
A. Is Plaintiff's Claim Regarding Leach Time Barred?
Defendant argues that Plaintiff's claim regarding Leach is untimely under 29 U.S.C. § 626(d)(2) because Leach did not file a charge of discrimination with the EEOC within 300 days of his termination. Doc. #48 at 7-14. Plaintiff argues that the claim is not time barred because a private charge is not required for the EEOC to bring an action under the ADEA. Doc. #105 at 5. The Court agrees with Plaintiff.
Section 626(d)(2) provides, in pertinent part: "No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed . . . within 300 days after the alleged unlawful practice occurred[.]" 29 U.S.C. § 626(d)(2) (emphasis added). On its face, § 626(d)(2) applies to actions brought by individuals, not the EEOC. Moreover, the United States Supreme Court has held that "the EEOC's role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA `from any source,' and it has independent authority to investigate age discrimination." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (quoting 29 C.F.R. §§ 1624.4, 1626.13 (1990)). The Court thus concludes that the 300-day limit set forth in § 626(d)(2) does not apply to Plaintiff's claims. See Massachusetts v. Bull HN Info. Sys., Inc., 143 F. Supp. 2d 134, 144-45 (D. Mass. 2001) (holding that the 300-day limit in § 626(d)(2) does not apply to claims brought by the EEOC); Glass v. IDS Fin. Servs., Inc., 778 F. Supp. 1029, 1051 (D. Minn. 1991) ("[T]he EEOC's ability to assert a direct action is not predicated on the filing of a timely charge[.]") (citing Gilmer, 500 U.S. at 28); EEOC v. Sperry-Univac Corp., No. C81-0276J, 1982 WL 649, *4 (D. Utah Nov. 29, 1982) ("Nothing in the express language of the ADEA or the incorporated provisions of the [Fair Labor Standards Act] conditions EEOC enforcement actions upon the timely filing of private charges of discrimination under § 626(d).").
Defendant further argues that Plaintiff's claim regarding Leach is barred by the statute of limitations contained in the Portal-to Portal Act, 29 U.S.C. § 255(a). Doc. #129 at 10-13. The Court disagrees. Former § 626(e) of the ADEA incorporated by reference the statute of limitations contained in § 255(a). 29 U.S.C. § 626(e) (1988); see Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 586 (9th Cir. 1993) (holding that the plaintiff's ADEA claims were not barred by the three-year limitations period contained in § 255 and incorporated into former § 626(e)). The Civil Rights Act of 1991, however, amended § 626(e) in part by deleting the reference to § 255(a). Pub.L. No. 102-166, 105 Stat. 1071 (1991) (codified at 29 U.S.C. § 626(e)); see Sperling v. Hoffmann-La Roche, Inc., 24 F.3d 463, 464 n. 1 (3d Cir. 1994) ("The Civil Rights Act of 1991 . . . amended section 626(e)(1) of the ADEA. Under the current version of section 626(e), . . . section [255(a)] of the Portal-to Portal Act is no longer expressly incorporated[.]"); Anderson v. Unisys Corp., 47 F.3d 302, 307-08 n. 14 (8th Cir. 1995) ("[T]he Civil Rights Act of 1991 . . . changed the applicable statute of limitations in ADEA actions.").
The current version of § 626(e) provides, in pertinent part:
If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in [§] 630(a) of this title against the respondent named in the charge within 90 days after the date of the receipt of such notice.29 U.S.C. § 626(e).
The Court finds unpersuasive Defendant's argument that, despite Congress's elimination of the explicit reference to § 255 in § 626(e), the limitations period contained in § 255 still applies to ADEA claims because § 626(b) adopts the "procedures" set forth in § 216 of the Fair Labor Standards Act ("FLSA"), which in turn adopts the limitations period in § 255. See Littell v. Aid Ass'n for Lutherans, 62 F.3d 257, 258-59 (8th Cir. 1995) (rejecting the argument that § 626(e)'s former explicit reference to § 255 was mere surplusage by virtue of the indirect reference to § 255 in § 626(b)).
The cases Defendant relies on are also unpersuasive because they do not hold that the limitations period contained in § 255 applies to ADEA actions. See Doc. #129 at 12. In McConnell v. Thomson Newspapers, Inc., 802 F. Supp. 1484 (E.D. Tex. 1992), the district court concluded that the EEOC's claims were untimely under § 626(e) because it did not bring suit within 90 days of notifying the person aggrieved that the EEOC proceedings had terminated. 802 F. Supp. at 1500. The court reached this conclusion by broadly construing the EEOC as a "person" under § 630(a) on the ground that the EEOC constitutes a "legal representative" when it files an ADEA action on behalf of individuals. Id. at 1499. This Court does not agree with the reasoning in McConnell that the EEOC constitutes a "person" as defined in § 630(a). See Wilkerson v. Martin Marietta Corp., 875 F. Supp. 1456, 1460 (D. Colo. 1995) (rejecting McConnell's broad construction of the term "person" based on the compelling legislative history predating the Civil Rights Act of 1991 and "the absurd results which application of . . . [a] statute of limitations would have" on ADEA actions brought by the EEOC).
In EEOC v. North Gibson School Corp., 266 F.3d 607 (7th Cir. 2001), the Seventh Circuit held that the EEOC's action was untimely under § 626(d) because the aggrieved individuals had not filed timely charges of discrimination with the EEOC. 266 F.3d at 616. The court concluded that the filing requirement in § 626(d) applied to the EEOC on the ground that it was "in privity" with the aggrieved individuals and acted as their "representative" with respect to their interests in monetary relief. Id. Under controlling Ninth Circuit law, however, employment discrimination actions brought by the EEOC are not subject to a filing requirement or a limitations period because "[t]he EEOC vindicates public policy by suing in federal court . . . regardless of the type of relief sought[.]" EEOC v. Occidental Life Ins. Co. of Cal., 535 F.3d 533, 539 (9th Cir. 1976) (emphasis added), aff'd, 432 U.S. 355 (1977). "[T]he fact that private parties may benefit from [an EEOC] action does not detract from the public nature of those proceedings." Id.
The district court in EEOC v. Oil Gear Co., 250 F. Supp. 2d 1193 (D. Neb. 2003), also relied on the filing requirement in § 626(d) in holding that one of the EEOC's claim was untimely because the aggrieved individual did not file a timely charge of discrimination. 250 F. Supp. 2d at 1196. The court failed to explain, however, why the filing requirement in § 626(d)(2) — which explicitly refers claims brought by "individuals" — applied to the EEOC's claim. Cf. Gilmer, 500 U.S. at 28 (holding that "the EEOC's role in combating age discrimination is not dependent on the filing of a charge").
The Court concludes that Plaintiff's claim regarding Leach is not time barred because no statute of limitations applies to ADEA actions brought by the EEOC. See Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359-72 (1977) (holding that no statute of limitations applies to Title VII claims brought by the EEOC because the EEOC has the duty of investigating and attempting to conciliate claims and, "[u]nlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties"); EEOC v. ATT Co., 36 F. Supp. 2d 994, 995-97 (S.D. Ohio 1998) (adopting the reasoning of the Supreme Court in Occidental Life Insurance and holding that "there is no specific statute of limitations with respect to claims brought by the EEOC under the ADEA"); Wilkerson, 875 F. Supp. at 1459-60 (holding that "there is no applicable statute of limitations in age discrimination claims brought by the EEOC"); cf. SEC v. Rind, 991 F.2d 1486, 1491-92 (9th Cir. 1993) (citing Occidental Life Insurance and holding that no statute of limitations applies to civil enforcement actions brought by the Securities and Exchange Commission).
Defendant states in its reply that the notion that the EEOC "may file litigation at any time for any person . . . is `utterly repugnant to the genius of our laws.'" Doc. #129 at 10-11 (quoting Occidental Life Ins., 432 U.S. at 376 (Rehnquist, J., dissenting)). As the majority opinion in Occidental Life Insurance explains, however, district courts have the power to provide relief to a defendant that has been "significantly handicapped in making his defense because of an inordinate EEOC delay in filing the action after exhausting its conciliation efforts." 432 U.S. at 373. This is essentially a laches issue, which is addressed below.
B. Does the Single Filing Rule or Similarly Situated Requirement Apply to Plaintiff's Claim Regarding Leach?
Defendant states that Plaintiff "is attempting to bootstrap relief for Leach into the Charging Parties' suit, even though Leach did not file a timely administrative charge with the EEOC." Doc. #48 at 8. Defendant contends that Leach "should not be allowed to `piggyback' onto the suit of the Charging Parties under the `single filing rule.'" Id. (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1101 (11th Cir. 1996) (holding that the single filing or "piggy backing" rule applies to ADEA cases)). Defendant further contends that to satisfy the single filing rule and the "similarly situated" requirement in 29 U.S.C. § 216(b), Plaintiff "must establish that Leach's claim consists of `similar discriminatory treatment' and that it occurred `in the same time frame' as the representative charge." Id. at 9 (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001) (holding that plaintiffs must show that they are "similarly situated" to bring a representative suit under § 216(b))).
Plaintiff argues that that the "single filing rule" line of cases does not apply because the EEOC has the authority to seek relief on Leach's behalf regardless of the timeliness of his claim and thus has no need to "piggyback" his claim onto the timely claims of the charging parties. Doc. #105 at 6-7. Plaintiff further argues that it is not subject to the "similarly situated" requirement in 29 U.S.C. § 216(b) because that section governs act ions brought by "employees," not actions brought by the EEOC, which are governed by 29 U.S.C. §§ 216(c) and 217. Id. at 7 (citing Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1204 (5th Cir. 1981); Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 553 (E.D. Wis. 1994); Glass v. IDS Fin. Servs., Inc., 778 F. Supp. 1029, 1081 (D. Minn. 1991)).
The Court agrees with Plaintiff. The ADEA enforcement section incorporates by reference the enforcement provisions of the FLSA, including §§ 216 and 217. 29 U.S.C. § 626(b) ("The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections . . . 216 . . . and 217 of this title[.]"). Section 216(b) provides that an employer may be sued "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (emphasis added); see Flavel, 875 F. Supp. at 553 (" The ADEA incorporates by reference the enforcement provisions of the [FLSA], including 29 U.S.C. § 216(b), which allows an employee to sue his or her employer `for and in behalf of himself or [herself] and other employees similarly situated.'") (alteration and emphasis in original). In contrast, ADEA suits brought by the EEOC are governed by §§ 216(c) and 217, neither of which contain a "similarly situated" requirement. 29 U.S.C. §§ 216(c), 217; see Glass, 778 F. Supp. at 1081 ("The EEOC's power to bring a direct suit rests on two sections of the ADEA, 29 U.S.C. §§ 216(c) 217, which do not contain the `similarly situated' standard applicable to private suits brought [pursuant] to 29 U.S.C. § 216(b).").
Section 216(b) provides that an employee may obtain all appropriate relief, including unpaid minimum wages and overtime compensation, lost wages, liquidated damages, employment, reinstatement, and promotion. 29 U.S.C. § 216(b). Under § 216(c), the EEOC may bring an action on behalf of an employee "to recover the amount of unpaid minimum wages or overtime compensation and an equal amount as liquidated damages." 29 U.S.C. § 216(c). Once the EEOC files suit seeking such relief, the employee's right to bring an action under § 216(b) to obtain the same relief terminates. 29 U.S.C. § 216(b)-(c). Under § 217, the EEOC may bring an action to obtain injunctive relief with respect to the payment of minimum wages or overtime compensation due employees. 29 U.S.C. § 217; see Donovan, 643 F.2d at 1203-04, nn. 5-7.
The Court concludes that the "similarly situated" requirement in § 216(b) does not apply to Plaintiff's claims as a matter of law because Plaintiff properly brought this action pursuant to §§ 216(c) and 217, not § 216(b). Doc. #1 ¶ 7; see Flavel, 875 F. Supp. at 553 ("Unlike a private representative suit, the EEOC's authority to bring such an action is not limited to circumstances where the plaintiffs are `similarly situated.' . . . [T]he EEOC may proceed in this matter on behalf of the plaintiffs whether or not they are `similarly situated[.]'"); Donovan, 643 F.2d at 1204 (stating that the language of § 216(b) makes clear that suits under § 217 "are to be brought by the Government, and that the Government has the power to seek class-wide relief for the victims without resorting to Rule 23"). The Court further concludes that Plaintiff need not rely on the single filing rule with respect to Leach's claim because ADEA suits brought by the EEOC are not subject to a statute of limitations. See Occidental Life, 432 U.S. at 359-72.
Defendant's reliance on Grayson and Hipp is misplaced because both cases involved private suits by employees under § 216(b), not actions by the EEOC under §§ 216(c) and 217. See Grayson, 79 F.3d at 1095-1102 (holding that the similarly situated requirement in § 216(b) is not stringent and that an individual may piggyback onto the timely charge filed by a named plaintiff in class suits brought under § 216(b)); Hipp, 252 F.3d at 1217 (discussing the similarly situated requirement and the piggy backing rule in class suits brought by employees under § 216(b)) (citing Grayson). The only ADEA case Defendant cites where the EEOC was a plaintiff is EEOC v. MCI International, Inc., 829 F. Supp. 1438 (D.N.J. 1993). Doc. #48 at 10. In that case, however, it appears that the EEOC sought to obtain damages under § 216(b). 829 F. Supp. at 1445 (discussing §§ 216(b), 216(c), and 217 and stating that the EEOC brought the action "pursuant to these provisions"). The district court concluded that the similarly situated requirement of § 216(b) was not met, but did so without addressing whether the EEOC could properly bring an ADEA action under § 216(b). Id. The Court finds the holding in MCI International inapposite because Plaintiff has not brought this action under § 216(b). See Doc. #1 ¶ 7.
C. Is Plaintiff's Claim Regarding Leach Barred by the Doctrine of Laches?
Leach was terminated on July 16, 1999 and filed his charge of discrimination nearly four years later on June 30, 2003. Doc. #49 ¶¶ 22, 59. Plaintiff commenced this action on September 18, 2003 and added Leach as a class member on April 6, 2004. Docs. ##1, 33.
Defendant argues that Plaintiff's claim regarding Leach is barred by the equitable doctrine of laches. Doc. #48 at 14-15 (citing EEOC v. Alioto Fish Co., 623 F.2d 86 (9th Cir. 1980)). Defendant states that although most of the delay was caused by Leach himself, Plaintiff has perpetrated the delay for at least another nine months by waiting until April 2004 to add Leach as a class member Id. at 14. Defendant further states that Plaintiff was aware of Leach's claim before it filed suit and "acted in a way that was inherently prejudicial to [Defendant] by telling [Defendant] that Leach's charge would not be considered because it was untimely." Id. at 15. Defendant states in its reply that it has been prejudiced by the delay because Jon Jaffe, Defendant's former Regional President, could not specifically recall at his deposition in January 2005 whether Leach's sales were low. Doc. #129 at 14 (citing Doc. #106 ¶ 21).
Plaintiff argues that Defendant has waived the defense of laches by not affirmatively alleging it in a pleading and that the defense does not apply to suits brought by the EEOC as a matter of law. Doc. #105 at 10-11. Plaintiff further argues that Defendant has not met its burden of establishing the elements of the defense. Id. at 11.
The Court finds that Defendant has not waived the defense with respect to Leach because Plaintiff identified Leach as a class member not in a pleading, but in a notice to the Court to which no responsive pleading was required. See Docs. ##1, 33. The Court further finds that laches may properly be raised as a defense in this case because the defense applies to employment discrimination actions brought by the EEOC when such act ions are not governed by a statute of limitations. See Occidental Life Ins., 432 U.S. at 373 (stating that district courts have the power to provide relief to a defendant that has been "significantly handicapped in making his defense because of an inordinate EEOC delay in filing the action"); Alioto Fish Co., 623 F.2d at 88 ("Laches . . . may be used as a defense to a Title VII action."); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 586 (9th Cir. 1993) (stating in an ADEA action that "laches is inapplicable when Congress has provided a statute of limitations to govern the action").
"The defense of laches `requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.'" Bratton v. Bethlehem Steel Corp., 649 F.2d 658, 666 (9th Cir. 1980) (citations omitted). Prejudice should not lightly be assumed from delay in employment discrimination actions because some delay in such actions "will be attributable to the EEOC's time-consuming . . . efforts at conciliation." Id. at 667 (citing Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368-72 (1977)). Moreover, "[l]aches questions are seldom susceptible of resolution by summary judgment, because `where laches is raised as a defense the factual issues involved can rarely be resolved without some preliminary evidentiary inquiry.'" Id. at 666 (citations and alterations omitted).
Because the parties did not brief the issue, it is unclear to the Court whether Leach's delay in filing his charge of discrimination may be imputed to Plaintiff under the laches doctrine. Moreover, the Court cannot determine from the record before it whether the EEOC's delay in adding Leach as a class member was unreasonable. Nor can the Court determine at the summary judgment stage whether Defendant has suffered prejudice from the delay sufficient to support a laches defense. See Bratton, 649 F.2d at 666 (stating that prejudice should not lightly be presumed and that laches can rarely be resolved on summary judgment); cf. Alioto Fish Company, 623 F.2d at 87-89 (affirming summary judgment on the ground of laches where the undisputed facts showed that the defendant was severely prejudiced when the EEOC brought suit more than five years after the charge was filed and many of the key witnesses and records were unavailable).
If Defendant intends to raise the laches defense at trial, the parties shall identify it as a contested issue in their proposed pretrial order and address whether Leach's delay may be imputed to the EEOC for purposes of the defense. The parties shall also address how they propose to try the defense given that it is an equitable issue for the Court to decide and that the Court does not intend to have a separate bench trial or evidentiary hearing on the issue.
D. Has Plaintiff Satisfied Its Conciliation Obligations?
Defendant argues that Plaintiff's claim regarding Leach should be dismissed because Plaintiff failed to conciliate the claim. Doc. #48 at 15-16. Plaintiff argues that it has no legal obligation to conciliate the claims of each and every potential class member. Doc. #105 at 8-9. Plaintiff further argues that its conciliation efforts in this matter were sufficient because it notified Defendant that it may file a class age discrimination suit and afforded Defendant the opportunity to resolve the class claim. Id. at 9; see Doc. #113 at 12-14.
Defendant makes the same argument with respect to Plaintiff's claim regarding Charlyne Sheehan. See Doc. #68 at 12-13.
The Court agrees with Plaintiff. The Ninth Circuit has held that in class suits, the EEOC is not required to conciliate on behalf of each potential class member. See EEOC v. Bruno's Rest., 13 F.3d 285, 289 (9th Cir. 1993) (citing EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989)); see also EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101-02 (6th Cir. 1984) (holding that because the EEOC sufficiently conciliated a class claim that reasonably grew out of the initial charge, no additional efforts at conciliation were required); EEOC v. GM Corp., 826 F. Supp. 1122, 1127 (N.D. Ill. 1993) (holding that the EEOC's conciliation efforts were sufficient and permissibly premised on the class claim); EEOC v. Equicredit Corp. of Am., No. 02-CV-844, 2002 WL 31371968, *4 (E.D. Pa. Oct. 8, 2002) (holding that the EEOC's refusal to identify a potential class member did not render its conciliation efforts inadequate) (citing Keco Indus., 748 F.2d at 1102). In light of these authorities, Plaintiff satisfied its conciliation obligation in this case by attempting to conciliate the class claim. Moreover, case law teaches that substantial deference should be given the EEOC in determining what level of conciliation effort is appropriate in a particular case. See EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1091 (C.D. Ill. 1998) (stating that the conciliation requirement is an easy burden to satisfy and that substantial discretion is vested in the EEOC with respect to conciliation); EEOC v. N. Cent. Airlines, 475 F.Supp. 667, 669 (D.Minn. 1979) ("[I]f some conciliation efforts have occurred, substantial deference should be given to the EEOC's determination that conciliation efforts have failed[.]").
E. Is There a Genuine Issue of Material Fact Regarding Discrimination?
Defendant argues that Plaintiff has not made a prima facie case of discrimination because Leach was not qualified for his position or meeting Defendant's expectations and Plaintiff cannot show that similarly situated non-protected persons were treated more favorably. Doc. #48 at 17 (citing Doc. #49 ¶ 26). To establish a prima facie case of age discrimination, Plaintiff must show that Leach was (1) a member of the protected class (at least age 40), (2) performing his job satisfactorily, (3) terminated, and (4) replaced by a younger employee with equal or inferior qualifications. See Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1229 (9th Cir. 1995); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). "The requisite degree of proof to establish a prima facie case is minimal; plaintiff need only offer evidence giving rise to an inference of unlawful discrimination." Messick, 62 F.3d at 1229; see Coleman, 232 F.3d at 1282 (stating that the prima facie case standard is a "low threshold"); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) ("The amount of evidence that must be produced in order to create a prima facie case is `very little.'") (citation and alterations omitted).
Plaintiff has presented evidence of the following: Leach was more than 40 years old when he was terminated and had more than 30 years experience in real estate sales and general contracting, eight of those years in supervisory duties. Doc. #106 ¶ 45. Defendant hired Leach as a real estate sales manager in December 1996 and during his employment Leach was a licensed real estate agent and associate broker. Id. ¶ 3. Leach received "generally positive" performance evaluations and a bonus from Defendant shortly before his termination in July 1999. Id. ¶¶ 32-35. Leach's former duties as a sales manager were assigned to Michael Dowell, who was less than 40 years old when he assumed the duties and had less real estate and supervisory experience than Leach. Id. ¶¶ 43, 45-46. These facts constitute sufficient prima facie evidence that Leach performed his job satisfactorily and that his former duties were assigned to a younger employee with equal or inferior qualifications. See Messick, 62 F.3d at 1229 ("[T]here was sufficient evidence for the trier of fact to infer that Messick was performing satisfactorily."); Coleman, 232 F.3d at 1281 (holding that when a discharge results from a reduction in workforce the plaintiff need not show that he was actually replaced, but may show that the employer had a continuing need for his skills and services and that his duties were still being performed).
Once a prima facie case has been established, the burden shifts to Defendant to articulate a legitimate non-discriminatory reason for the termination. See Wallis, 26 F.3d at 889. The EEOC must then produce evidence sufficient to create a genuine issue of material fact as to whether Defendant's stated reason is pretextual. Id.
Defendant states that Leach was terminated because his productivity was not acceptable. Doc. #48 at 17 (citing Doc. #49 ¶ 26; see Doc. #89 ¶ 26). Although this would be a legitimate, non-discriminatory basis for terminating an employee, the Court finds that the EEOC has presented sufficient evidence of discriminatory intent to raise a question of fact as to whether Defendant's stated reason is pretextual. Specifically, Leach has testified that David Kitnick, one of Defendant's Division Presidents, bragged during a meeting that he needed to "get rid of the staff that he had" and "bring in younger people to fulfill his mission." Doc. #106 ¶ 7. Under Ninth Circuit law, this direct evidence of discriminatory intent, standing alone, is sufficient to create a triable issue with respect to pretext. See Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir. 1996) (reversing summary judgment for the defendant and stating that whet her discriminatory remarks affected the decision-making process was "a question appropriately answered by a trier of fact"); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) ("Godwin testified that the president of the company . . . made derogatory comments about women at meetings. . . . Godwin's direct evidence of discriminatory animus satisfies the required showing at the pretext stage."); Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) ("Because direct evidence is so probative, the plaintiff need offer `very little' direct evidence to raise a genuine issue of material fact.") (citing Godwin).
Defendant argues that Plaintiff "has mischaracterized the facts" because Kitnick's alleged statement was vague and referred to past conduct since "[p]eople do not normally brag about something that they have not done yet." Doc. #129 at 2. Defendant essentially asks the Court to construe the evidence in its favor. At the summary judgment stage, however, the Court must construe all evidence in favor of the nonmoving party — in this case, the EEOC. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) (reversing summary judgment for the defendant because "the district court . . . failed to draw all reasonable inferences in favor of Raad, the nonmoving party, and impermissibly substituted its judgment concerning the weight of the evidence for the jury's").
Plaintiff has also presented sufficient circumstantial evidence of pretext. Leach has testified that at the time of his termination his productivity was increasing. Doc. #106 Ex. C ¶ 6. Leach has further testified that he was never advised that his performance was deficient or that improvement was necessary to retain his job even though Defendant had a policy of advising employees of performance problems and attempting corrective action before terminating the employees. Id. ¶¶ 27-28. Leach's personnel forms do not indicate that he was terminated for lack of productivity. Id. ¶ 17. Rather, the forms indicate that he was simply laid off and that his termination was a "cut back in staff." Id. The forms do not mention a productivity problem even though Defendant's policy required the terminating official to set forth a specific reason for the termination and the Employment Separation Form completed for Leach provided space for such reason coupled with the instruction to "[b]e as specific as possible." Id. ¶¶ 16-18. Such indirect evidence creates a question of fact on pretext that must be resolved by the jury at trial. See Godwin, 150 F.3d at 1222 (stating that documents prepared contemporaneously with the challenged action that are inconsistent with the defendant's stated reason for the action are probative of pretext); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.").
Defendant has presented no evidence contemporaneous with Leach's termination showing that Leach was not productive. Rather, Defendant relies on the post-termination testimony of Leach's supervisors. Doc. #48 at 17 (citing Doc. #49 ¶ 26; see Doc. #89 ¶ 26). Whether such testimony is to be believed is a matter of credibility for the jury to determine. "Although `shifting explanations are acceptable when viewed in the context of other surrounding events, such weighing of the evidence is for a jury, not the [Court].'" Godwin, 150 F.3d at 1222 (citation and alteration omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge[.]"); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (" Issues of credibility, including questions of intent, should be left to the jury. When a plaintiff has provided direct and circumstantial evidence of discriminatory intent, she . . . may be able to survive a motion for summary judgment on that evidence alone.") (citations omitted).
Defendant contends that Leach's subjective beliefs regarding his qualifications and performance are irrelevant and that the only issue is whether Defendant honestly believed that Leach was not qualified and lacked productivity. Doc. #129 at 4-7 (citing Palucki v. Sears, Roebuck Co., 879 F.2d 1568, 1571 (7th Cir. 1989)). Defendant further contends that Plaintiff cannot "show that the differences between Dowell's qualifications and those of Leach are significant enough to `jump off the page and slap you in the face.'" Id. at 6-7 (citing Deines v. Tex. Dep't of Protective Reg. Servs., 164 F.3d 277, 279 (5th Cir. 1999)). Under Ninth Circuit law, however, subjective evidence of an employees's qualifications and job performance may be relevant on the question of pretext. See Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 602 (9th Cir. 1993) (holding that the plaintiff's superior qualifications standing alone were enough to prove pretext). The Ninth Circuit has " never followed the Fifth Circuit in holding that the disparity in [employees'] qualifications `must be so apparent as to jump off the page and slap [you] in the face to support a finding of pretext.'" Raad, 323 F.3d at 1194 (brackets added; emphasis in original). Moreover, whether Defendant honestly believed that Leach was not qualified and lacked productivity is an issue of fact for the jury. See Harris, 183 F.3d at 1051; Braxton-Secret v. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985) ("Questions involving a person's state of mind . . . are generally factual issues inappropriate for resolution by summary judgment.").
For these reasons, the Court will deny Defendant's motion for partial summary judgment regarding Leach.
The Court will grant Defendant's motion to exceed page limits and motion to supplement its statements of facts. Docs. ##101, 131. The Court will deny as moot Plaintiff's motion to strike facts and evidence submitted by Defendant. See Doc. #104.
II. Defendant's Motion for Partial Summary Judgment Re: Charlyne Sheehan.
Defendant argues that Plaintiff cannot make a prima facie case of discrimination with respect to Sheehan because she voluntarily resigned when the new home community to which she was assigned closed. Doc. #68 at 6-7. Plaintiff argues that it has made a prima facie case because it has presented evidence that Defendant terminated Sheehan's employment. Doc. #113 at 7-11. The Court finds that questions of material fact preclude summary judgment.
Plaintiff has presented evidence of the following: Defendant hired Sheehan as a new home sales consultant in February 1996. Doc. #114 ¶ 1. Michael Dowell, Sheehan's supervisor, assigned her to the Park Rowe community in February 2000. Id. ¶ 5. Park Rowe was scheduled to close in March 2000. Id. When the advertising for Park Rowe had been taken down, Sheehan discussed with Dowell the possibility of transferring to another community. Id. ¶¶ 9, 11. Dowell repeatedly told Sheehan that there were no open communities to which she could be transferred. Id. ¶ 11. Sheehan thus determined that her services were no longer needed by Defendant. Id. ¶ 35.
Defendant's notice to Sheehan regarding her change in employment shows both that her departure was "voluntary" and "involuntary." Id. ¶ 36. The notice indicates that her "involuntary" departure and "[l]ayoff" were effective May 8, 2000, the same date charging parties Carol Nikrant and Gordon Cameron were laid off by Defendant. Id. ¶¶ 363-9. The notice further indicates that Sheehan was laid off because there was "no new community" available. Id. ¶ 36. Sheehan wrote at the bottom of the notice that she "was laid off because there was no new community for [her] to go to" and that she "would have stayed on with [Defendant] otherwise." Id. ¶ 37.
Charging party Jacque Judge was laid off one week earlier on May 1, 2000. Id. ¶ 39.
These circumstances, construed in Plaintiff's favor, constitute evidence that Sheehan was terminated and satisfy the low prima facie case standard. See Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1229 (9th Cir. 1995) ("The requisite degree of proof to establish a prima facie case is minimal[.]"); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000) (stating that the prima facie case standard is a "low threshold"); see also Little v. Windermere Relocation, Inc., 301 F.3d 958, 971 (9th Cir. 2002) (reversing summary judgment for the defendant on Title VII and wrongful discharge claims in part because there were issues of fact as to whether the plaintiff resigned or was terminated).
Defendant does not address the notice in its reply, stating only that "there is absolutely no evidence that [it] intended to or did terminate Sheehan." Doc. #146 at 4.
Defendant argues that Plaintiff has presented no evidence of discrimination even if Sheehan is determined to have been terminated. Doc. #68 at 7. As discussed above, however, Leach testified that Kitnick said he had to get rid of the staff and "bring in some younger people." Doc. #114 ¶¶ 52-53. Nikrant has testified that Dowell asked her, "Just how old of a person is Jacque Judge?" Id. ¶ 54. Dowell made the same inquiry to former sales consultant Marilyn Harris. Id. Kitnick's statement coupled with Dowell's inquiries constitute direct evidence of discrimination sufficient to survive summary judgment. See Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir. 1996) (reversing summary judgment for the defendant where the plaintiff was told that he would not be considered for a promotion because the defendant want ed someone younger for the job); Cordova v. State Farm Ins. Co., 124 F.3d 1145, 1149-50, n. 5 (9th Cir. 1997) (reversing summary judgment for the defendant and stating that the fact that a manager's discriminatory comments were recounted by the plaintiff's coworkers did not lessen the probative value of the comments); EEOC v. Pape Lift, Inc., 115 F.3d 676, 684 (9th Cir. 1997) ("[Defendant] would have this court hold that discriminatory remarks are tied to the decision process only if a decision maker said something to the effect of `I'm firing you because you are too old.' Few employers who engage in illegal discrimination, however, express their discriminatory tendencies in such a direct fashion[.]"); Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 n. 6 (9th Cir. 2005) ("[W]hen evidence establishes the employer's animus toward the class to which the plaintiff belongs, the inference to the fact of discrimination against the plaintiff is sufficiently small that we have treated the evidence as direct.") (citing Cordova).
Plaintiff has also presented sufficient circumstantial evidence of pretext. Construed in its favor, Plaintiff's evidence shows the following: Sheehan could have been transferred to a new community when the Park Rowe community closed. Doc. #114 ¶¶ 12, 14-16. Defendant transferred sales consultants younger than Sheehan from Park Rowe to other communities. Id. ¶¶ 6-7, 30-31. Defendant was hiring sales consultants who were less than 40 years old and less experienced than Sheehan for new communities at the same time Dowell was telling her that no new communities were available. Id. ¶¶ 17-29. Sheehan was laid off on the same date as Cameron and Nikrant, both of whom were over 40 years old. Id. ¶ 39. Sheehan and the charging parties were the only Arizona sales consultants who were laid off instead of being transferred when their respective communities closed. Id. ¶ 34.
A jury could reasonably conclude from this evidence that Defendant's stated reason for Sheehan's departure — that there were no new communities to which she could be transferred — is unworthy of credence. See Reeves, 530 U.S. at 147 ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). The Court will deny Defendant's motion for partial summary judgment regarding Sheehan.
Defendant contends that any inference of discrimination is negated because Sheehan had been promoted from a "rover" position to a full-time assignment shortly before her departure. Doc. #68 at 7. This evidence must be weighed against the evidence recounted above, a task for the jury.
III. Defendant's Motion for Partial Summary Judgment Re: Carol Nikrant, Jacque Judge, and Gordon Cameron.
Defendant states that the charging parties were laid off because of the closing of their communities and performance issues. Doc. #70 at 5 (citing Doc. #49 ¶ 45). Defendant argues that Plaintiff has no direct evidence of discrimination and cannot otherwise show that Defendant's stated reasons for terminating the charging parties were pretextual. Id. at 7-10.
Defendant also argues that the charging parties were not qualified for their positions or meeting Defendant's expectations. Id. ¶ 9 (citing Doc. #49 ¶ 26). The evidence Defendant relies on in support of its argument, however, refers to Leach, not the charging parties. See Doc. #49 ¶ 26 ("Leach was discharged because he was unable to achieve adequate or consistent productivity[.]"). Moreover, the Court finds that Plaintiff has presented sufficient evidence to make a prima facie case with respect to the charging parties. See Docs. ##116 at 7-9; 117 ¶¶ 77, 79-81, 93, 96, 119, 121, 125-28, 146, 159, 182, 217-18.
As noted above, Kitnick's comment regarding his desire to "bring in some younger people" coupled with Dowell's inquiries regarding Judge's age constitute direct evidence of discrimination sufficient to survive summary judgment. Doc. #116 at 6-7 (citing Doc. #117 ¶¶ 25-29). Plaintiff has also presented sufficient circumstantial evidence of pretext to survive summary judgment . Id. at 9-21. The Court finds that there are genuine issues of material fact as to (1) whether Defendant falsely told the charging parties that there were no communities to which they could be transferred, and (2) whether the charging parties were terminated because of performance problems. The Court will deny Defendant's motion for partial summary judgment regarding Nikrant, Judge, and Cameron.
See Docs. ##116 at 10; 117 ¶¶ 33-34, 39-41, 47-48, 68-77, 79-100.
See Docs. ##116 at 10-13; 117 ¶¶ 35, 49, 51, 54-59, 65-66, 101-14, 117, 136-37, 147, 159-63, 168, 182, 185-86, 196, 210, 216-18.
The Court will deny as moot Plaintiff's motion to strike facts and evidence submitted by Defendant. Doc. #115. The Court will grant Defendant's motion to supplement replies and deny its motion to strike evidence as moot because the Court did not consider the challenged evidence. Docs. ##145, 148.
IV. Defendant's Motion for Partial Summary Judgment Re: Limitation of Damages for Gregory Leach.
Defendant argues that the potential damage period for Leach is limited, as a matter of law, to the time between his termination on July 16, 1999 and Defendant's sale of its Ventana Lakes community to Shea Homes on November 1, 2000. Doc. #90 at 1-2 (citing Sivell v. Conwed Corp., 666 F. Supp. 23, 25-26 (D. Conn. 1987)). Plaintiff disagrees based on the following undisputed evidence: Leach's job duties as a sales manager at Ventana Lakes included new home sales and he was hired as a salesman by Royce Homes after his termination. Doc. #110 ¶¶ 7-8. When Ventana Lakes was sold, Dowell and Barry Grant, Defendant's President, told the employees that if they wanted to stay on with Defendant positions would be found for them and that they were welcome to come back if they took jobs with Shea and did not like them. Id. ¶¶ 2-3. One employee stayed on with Defendant and two employees were hired by Shea. Id. ¶¶ 4-6.
Construing this evidence in Plaintiff's favor, the Court finds that there are genuine issues of material fact as to whether Leach would have remained with Defendant or been hired by Shea if he had not been terminated prior to the sale of Ventana Lakes. See Bonura v. Chase Manhattan Bank, N.A., 629 F. Supp. 353, 356 (S.D.N.Y. 1986) (holding that the defendant's liability to ADEA plaintiffs did not end with the sale of the division in which they worked prior to their termination because there was evidence that they would have been retained by the defendant or its successor); Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1098 (8th Cir. 1982) ("[T]he jury reasonably could have found that Mohawk would have retained Gibson after it closed its West Helena facility. Thus, the district court did not err in refusing to limit Gibson's recovery as a matter of law to the period prior to the West Helena plant's closure."). The Court will deny Defendant's motion for partial summary judgment regarding limitation of damages for Leach.
Defendant's reliance on Sivell is misplaced because the plaintiff in that case presented no evidence that he would have remained with the defendant or been hired by its successor. 666 F. Supp. at 25-26.
V. Defendant's Motion for Partial Summary Judgment Re: Limitation of Damages for Certain Claimants.
Defendant argues that Nikrant, Sheehan, Cameron, and Judge are entitled to no backpay or limited backpay because they failed to mitigate their damages. Doc. #92 at 1. Defendant has the burden of proof on this issue. See Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). Defendant must prove "`that, based on the undisputed facts in the record, during the time in question there were substantially equivalent jobs available, which [the claimants] could have obtained and that [the claimants] failed to use reasonable diligence in seeking one.'" Id. (quoting EEOC v. Farmers Bros. Co., 31 F.3d 891, 906 (9th Cir. 1994) (emphasis in Farmers)); see Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1345 (9th Cir. 1987) ("The defendant bears the burden of showing that there were suitable positions available and that the plaintiff failed to use reasonable care in seeking them.").
Plaintiff contends that Defendant has not proven that suitable jobs were available to the claimants as a matter of law. Doc. #119 at 4-6. Defendant contends that it has met its burden on this element because Nikrant, Sheehan, and Cameron obtained jobs selling real estate shortly after they left Defendant's employment. Doc. #92 at 2-3. The Court need not resolve this issue because it finds that Defendant has not satisfied the second requirement of its failure-to-mitigate defense — showing that the claimants failed to use reasonable diligence in seeking new jobs.
A. Carol Nikrant.
Defendant acknowledges that Nikrant found a job at Jackson Properties within a week of her termination and worked there until July 18, 2001. Doc. #92 at 5. Defendant further acknowledges that Nikrant worked at Real Estate Temps from July 18, 2001 to January 29, 2002. Id. at 6. Defendant states that Nikrant then retired to the Pinetop-Lakeside area and cared for her mother-in-law on a full-time basis. Id. at 6 (citing Doc. #93 ¶¶ 25-26, Ex. E (Nikrant Dep. at 7, 19-26, 76)). Defendant contends in its motion that Nikrant's claim for damages should end on July 18, 2001 because Nikrant could have obtained permanent employment with Real Estate Temps. Id. at 6, 12. Defendant contends in its reply that damages should end no later than January 29, 2002, when Nikrant left Real Estate Temps and moved to Pinetop-Lakeside. Doc. #147 at 3-4.
Plaintiff has presented an affidavit from Nikrant in which she testified that after January 29, 2002 she sought "employment in the real estate field and applied to Torreon Realty, Arizona Realty and Madico Realty" and "also applied at White Mountain Country Club and Home Depot (three times)." Doc. #120 Ex. C ¶¶ 8-9. Nikrant further testified that she was able to care for her mother-in-law and still work until her husband became ill in December 2004, but that he fully recovered by April 2005. Id. ¶ 9.
Defendant contends that Nikrant's affidavit directly contradicts her deposit ion testimony that "she had done essentially nothing to become employed in the real estate community subsequent to retiring to Pinetop-Lakeside." Doc. #147 at 3 (citing Doc. #93 ¶ 26). Defendant further contends that the affidavit is offered solely to avoid summary judgment and that "Nikrant is bound by her deposition testimony." Id. (citing Burrell v. Star Nursery, Inc., 170 F.3d 951, 954 (9th Cir. 1999) (holding that the plaintiff's affidavit sought to create "sham issues of fact" because her allegations of sexual harassment appeared for the first time in the affidavit and directly contradicted her prior deposition testimony)).
The Court has reviewed the portions of the Nikrant deposition cited by Defendant and cannot conclude that the affidavit is a sham. Nikrant explicitly testified at her deposition that she sought employment at Torreon and Madico Realty and that she inquired with another realtor but could not recall the name. Doc. #93 Ex. E, Nikrant Dep. at 20, 23, 25-26. Nikrant did not testify these were her only efforts to obtain employment in the Pinetop-Lakeside area. Nor did she unequivocally testify that she was unable to work due to the care she provided her mother-in-law. See id. at 20-21.
The Court has not read the entire Nikrant deposition. The Court is required to review only those portions of the evidence cited by the parties. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001).
The "sham affidavit" rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). Rat her, the trial court must find that the affidavit "flatly contradicts" earlier testimony and is in fact a sham. Id. at 266. The Court cannot make that finding in this case.
Quest ions of fact preclude summary judgment on whether Nikrant failed to seek employment with reasonable diligence after July 18, 2001 or January 29, 2002.
B. Charlyne Sheehan.
Defendant acknowledges that Sheehan found a new job within a week of her departure and has been employed as an activities director for Cal-Am Properties since November 2001. Doc. #92 at 6. Defendant nonetheless argues that Sheehan should be denied damages from November 2001 because she "voluntarily left the real estate market" and "allowed her license to sell real estate to expire[.]" Doc. #147 at 4. The Court agrees with Plaintiff's argument that Sheehan was not required to stay in the same profession in order to mitigate her damages. Doc. #119 (citing Odima, 53 F.3d at 1497).
C. Gordon Cameron.
Defendant acknowledges that Cameron began working for Ryland Homes on January 1, 2001 and for Centex Homes in October 2003. Doc. #92 at 7. Defendant asserts, without analysis, that "Cameron should be barred from back-pay after January 1, 2000, the date he was employed by Ryland, but not later than October 2003, when he was employed by Centex." Id. at 12.
Defendant notes that Cameron was fired from Centex for misconduct. Id. Plaintiff, however, is not seeking damages for Cameron after March 1, 2004, the date he lost his job with Centex. Doc. #119 at 12 (citing Doc. #120 ¶ 49).
Defendant appears to be taking the position that Cameron's damages ceased after he found employment with Ryland and Centex. As Plaintiff points out, however, this is a question of the amount of damages, not of mitigation. Doc. #119 at 12. Indeed, Cameron's employment with Ryland and Centex is evidence that he used reasonable diligence in seeking employment after his termination. The amount of damages to be recovered by Cameron, if any, will be decided by the jury.
D. Jacque Judge.
Defendant contends that Judge is entitled to no backpay because although she worked in "resale real estate from June 2001 until December 2003, she made only $6,000.00 during that period and did virtually nothing to obtain employment with a homebuilder/developer." Doc. #92 at 5. As explained above, a claimant is not required to stay in the exact same line of work in order to mitigate her damages. See Odima, 53 F.3d at 1497. Moreover, Judge has testified that she sought re-employment with Defendant and sought employment with four other new home builders after her termination. Doc. #120 ¶¶ 14-19. Judge has further testified that her termination was so shocking and traumatic that it devastated her self-esteem and made it difficult for her to seek other employment. Id. ¶ 7.
Construing the evidence in Plaintiff's favor, the Court finds that questions of fact exist as to whether Nikrant failed to seek employment with reasonable diligence after her termination. See EEOC v. Pape Lift, Inc., 115 F.3d 676, 684 (9th Cir. 1997) (holding that the claimant's efforts to seek employment by reviewing the want ads was not unreasonable as a matter of law where there was evidence that his lack of aggressiveness in pursuing new employment was common among older workers: "[W]e think it . . . appropriate to tailor the reasonableness inquiry to the particular characteristics of the injured plaintiff. . . . Accordingly, the evidence about [the claimant's] mental condition following his discharge was sufficient to support the jury's conclusion that his mitigation efforts were reasonable.").
The Court will deny Defendant's motion for partial summary judgment on damages for certain claimants.
VI. Defendant's Motion to Strike Any Claims Asserted on Be half of Gregory Leach and Charlyne Sheehan and Alternative Motion for Leave to Amend Answer.
A. The Motion to Strike Claims.
In its motion to strike claims, Defendant seeks to have Plaintiff's claims regarding Leach and Sheehan stricken on the ground that Plaintiff has not amended the complaint to include the claims. Doc. #133 at 2-3. Defendant filed the motion on April 19, 2005. Id. The deadline for filing dispositive motions, however, was April 1, 2005. Docs. ##24 ¶ 7(a), 43 ¶ 1(F). Defendant does not mention the fact that the motion is untimely . Nor has Defendant shown "good cause" under Rule 16(b) of the Federal Rules of Civil Procedure.
Rule 16(b) provides that the district judge shall enter a scheduling order governing the case and that the "schedule shall not be modified except upon a showing of good cause[.]" Fed.R.Civ.P. 16(b); see Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005) ("Courts set [pretrial] schedules to permit the court and the parties to deal with cases in a thorough and orderly manner, and they must be allowed to enforce them, unless there are good reasons not to.").
The parties' joint case management report provides that, consistent with its complaint, Plaintiff "may identify additional class members on whose behalf it will seek relief." Doc. #22 ¶ 6; see Doc. #1 at 1 (" This is an action under the [ADEA] to correct unlawful employment practices on the basis of age and to provide relief to Jacque Judge, Carol Nikrant, Gordon Cameron, and a class of protected age group persons whom Defendant laid off because of their age.") (emphasis added). In its case management order, the Court set an April 6, 2004 deadline "for adding class members to this case[.]" Doc. #24 ¶ 2. Plaintiff timely filed a notice adding Leach and Sheehan as "additional class members on whose behalf [Plaintiff] will seek relief in this case[.]" Doc. #33.
Defendant did not object to the notice. Nor did Defendant argue in any one of its five summary judgment motions that Plaintiff's claims regarding Leach and Sheehan should be barred because Plaintiff had not amended the complaint to include the claims. The Court finds that Defendant has not shown good cause for filing its motion to strike after the dispositive motion deadline. See Fed.R.Civ.P. 16 Advisory Comm.'s Notes (1983 Am.) (stating that good cause exists when a deadline "cannot reasonably be met despite the diligence of the party seeking the extension"); Johnson, 975 F.2d at 609 (holding that the plaintiff "failed to demonstrate good cause for his belated motion to amend" and stating that "Rule 16(b)'s `good cause' standard primarily considers the diligence of the party seeking the amendment"). The Court will deny Defendant's motion to strike.
Defendant states in its reply that its motion to strike is not untimely because it "raises an issue of subject matter jurisdiction which cannot be waived by any party and can be considered by the Court at any time." Doc. #153 at 7. Defendant argues that the Court lacks subject matter jurisdiction because Plaintiff failed to conciliate the claims regarding Leach and Sheehan. Id. As explained above, however, Plaintiff had no legal obligation to conciliate each class member's claim. See EEOC v. Bruno's Rest., 13 F.3d 285, 289 (9th Cir. 1993).
B. The Alternative Motion for Leave to Amend Answer.
In its alternative motion, Defendant seeks leave of Court to amend its answer to include the defense of laches and other unspecified defenses purportedly applicable to Leach and Sheehan. Doc. #33 at 3-5. Plaintiff argues that, except with regard to the laches defense against Leach, Defendant has offered no explanation as to why it seeks leave to amend its answer more than a year after Leach and Sheehan were added as class members and months after it filed summary judgment motions regarding their claims. Doc. #142 at 3. Plaintiff further argues that the proposed amended answer is inappropriate because it includes allegations learned during discovery regarding the charging parties and a new allegation that the original complaint was untimely. Id. at 4 (citing Doc. #133 Ex. A). Plaintiff concludes that Defendant has no need to supplement its answer with lengthy allegations already raised in its motions for summary judgment. Id. at 3.
As explained above, Defendant has not waived its laches defense with respect to Leach by not having raised the defense in its answer. Nor has Plaintiff argued, or the Court concluded, that Defendant has waived any other defenses with respect to Leach or Sheehan. The Court thus finds that Defendant's proposed amended answer is unnecessary. The Court will deny Defendant's motion for leave to amend answer.
IT IS ORDERED:
1. Defendant's request for oral argument (Doc. #54) is denied.
2. Defendant's motions for partial summary judgment (Docs. ##48, 68, 70, 90, 92) are denied.
3. Defendant's motion for leave to exceed page limits (Doc. #101) is granted.
4. Plaintiff's motions to strike facts and evidence submitted by Defendant (Docs. ##104, 115) are denied as moot.
5. Defendant's motions to supplement (Docs. ##131, 148) are granted.
6. Defendant's motion to strike claims and alternative motion for leave to amend answer (Doc. #133) are denied.
7. Defendant's motion to strike evidence (Doc. #145) is denied as moot.
8. Defendant's motion to correct the record (Doc. #152) is granted.
The Court will set a pretrial conference by separate order.